February 2001 Contents

Privy Council appeals

High Court - roadways over general land
High Court - Orakei Act 1991 & authority of Ngäti Whatua
High Court - More Tainui meetings

Moutoa Gardens settlement
Native title in Australia - the Yorta Yorta appeal

Annual index

Māori Law Review Index December 2000 to November 2001


Appeals to the Privy Council

The Government is considering again whether appeals to the Privy Council should end (Reshaping New Zealand's Appeal Structure. Discussion Paper. December 2000. www.executive.govt.nz/minister/wilson/privy-council/ and see also Mäori LR May 1996 p3).

One concern has been the perception that the Privy Council has historically been protective of Mäori interests where the government has been hostile or opposed to those interests. The cases of Nireaha Tamaki v Baker [1901] AC 561 and Wallis v Solicitor-General [1903] AC 173 are usually mentioned, and more recently, NZ Mäori Council v A-G (Broadcasting) [1994] 1 NZLR 513 (see Mäori LR May 1996 p4. However, the Privy Council has not always been viewed so positively.

In 1901 East Coast Mäori took legal action against an investment company that had been noted as the owner of several blocks of land under the Land Transfer Act which the plaintiffs claimed had been originally acquired from them by fraud. The Court of Appeal upheld the plaintiffs' case. The matter was appealed to the Privy Council, which found against the Mäori plaintiffs. Subsequently, a petition was filed calling on Parliament to rectify the matter. It stated:

"That your Petitioners in common with the whole Mäori race are content to be governed by the Crown under the provisions of the Treaty of Waitangi, they loyally obey the laws passed by the Parliament, and they submit to the decisions of the Supreme Court and the Court of Appeal of New Zealand, especially in relation to their land, knowing that the Parliament is anxious to protect the Mäoris, and that the judges of the Supreme Court and the Court of Appeal have complete knowledge of the meaning and intention of the Acts passed regarding the Natives and their lands, being intimately acquainted with the wrongs which existed and the remedies which parliament applied to address those wrongs.

That your Petitioners object to the decisions of the New Zealand Judges upon Native Land Laws being referred to a Court in England whose judges know nothing of the Laws they are they called upon to interpret, and who are entirely ignorant of the circumstances surrounding Native legislation and the wrongs and remedies proposed to be dealt with therein."

The petition also argued:

"That the Judicial Committee of the Privy Council in all cases sent to it from New Zealand is purely a Colonial Tribunal or Board and as such its decisions are equally amenable to an Act of the New Zealand Parliament as the decisions of any local court.

That your Petitioners object to the titles to their lands and their interests therein being referred to any Court outside of New Zealand, or to any tribunal composed of judges who know nothing about New Zealand Law and the Native people."

Among other things, the petition called for legislation "making the decisions of the Court of Appeal final and conclusive in all matters relating to the Native people and their lands."

The Privy Council decision is well known in New Zealand land law. Assets v Mere Roihi [1905] AC 176 established that although there may have been fraud in the way in which interests in land had been obtained from earlier owners, a subsequent bona fide purchaser for value can rely on registration under the Land Transfer Act. The Court of Appeal had been prepared to find that equitable or implied fraud was sufficient to overturn the registered title. The Privy Council insisted on actual fraud by the current registered owner. The decision had significant ramifications. It severely limited the options of aggrieved Mäori owners confronted by an adverse registered title, a not uncommon occurrence in the early twentieth century (Boast et al, Mäori Land Law 1999 p251).

The Privy Council has no real track record with Mäori issues in recent decades, and, as the current discussion paper points out, most major developments in the law affecting Mäori in recent years have been in the New Zealand courts. A better appreciation of Mäori values by those courts is important.

The current paper has several proposals to address Mäori concerns about the possible bias of a wholly New Zealand appeal structure. These are:

o Greater representation of Mäori within the justice system as judges.

o Processes to give the Court of Appeal access to expert advice on Mäori values.

o Acknowledging Mäori values within the substantive law.

o Appeals from the Mäori Appellate Court directly to the Court of Appeal.

o Overseas judges on the appeal bench (for eg the Chief Justice of Samoa, judicial members of the Privy Council, members of the Canadian Supreme Court and the Australian High Court).

The first three proposals should be happening anyway. The fourth proposal may be a necessity, since there are doubts about appeal rights from the Mäori Appellate Court to the Privy Council (see Mäori LR February 1998 p1). Which leaves the fifth proposal. The discussion paper comments, slightly disapprovingly, that "[t]his suggestion could be seen to be at odds with New Zealand's independence." The response from Mäori submitters will be interesting to observe.


Coles v Miller & Others & Mäori Land Court & District Land Registrar
CP80/95. 22 December 2000. High Court Wellington. Glazebrook J

This case concerned European land in several certificates of title over which the Mäori Land Court had laid a roadway to provide access to Mäori land.

Section 418 Mäori Affairs Act 1953 provided that, for the purpose of providing access to Mäori freehold land, the land court could order roadways to be laid over Mäori land or European land (which had become European land after December 1913) without the consent of any person being required. Section 419/1953 provided that, for the purpose of providing access to European land (which had become European land after December 1913), the land court could order roadways to be laid over Mäori freehold land the consent of any person being required. Also relevant were:

o Section s74 Te Ture Whenua Mäori Act 1993 providing that orders are not invalid because of some minor defect or error (formerly s64/1953).

o Section s77/1993 providing that orders "with respect to Mäori land" are conclusive after ten years (formerly s64/1953).

The history of the roadway was unclear, but poorly defined orders for a roadway over some of the affected land to provide access to Mäori land had been made in 1935, 1937 and 1939. Then in 1963 the land court ordered that, with the consent of all affected owners, a surveyor's plan of the access currently in use should be made, and the court would then cancel all existing orders and replace them with a single roadway order based on the survey. That order was probably best described as a conditional order.

In 1968 the land court received a survey plan and ordered a roadway to be laid out under s418/1953. At the time of the 1963 order, the plaintiffs had recently purchased some of the European land over which the roadway was laid, but only the former owners were notified of the court hearing (the transfer to the plaintiffs was not registered until 1964). The plaintiffs were not notified of the 1968 order before it was made.

The plaintiffs as owners of European land were concerned that:

o The position of the roadway did not allow them to make optimal use of their land.

o It was unclear who was responsible for maintaining the roadway.

o The public was using this poorly maintained road and the European land owners were concerned about their liability in the event of an accident.

Consequently, they brought proceedings questioning whether the roadway had ever been validly created.

Held: the roadways should remain and the proceedings should be dismissed.

Jurisdiction of the land court
The plaintiffs had argued that:

o The power under s418/1953 was a surprising one since it does not require notice or consent of the landowners, and the public may use any roadway created. Accordingly, the power should be construed strictly and narrowly and should be limited to one certificate of title - not several as in this case.

o The powers under ss418 & 419/1953 should not be combined as they had been in this case. Combining the powers would allow the land court to lay out roadways over European land to provide access to European land.

The High Court found that:

o There was nothing in the Mäori Affairs Act 1953 to suggest that the power under s418 should be limited to one certificate of title (and at the time the roadway was laid out the European land was in one title anyway).

o The power to lay a roadway over European land was in any event restricted by the fact that it only applied to European land which had become so since 1913, and only for the purpose of access to Mäori land where no other access existed.

o There was nothing in the 1953 Act to suggest that ss418 & 419 could not be used in combination and in this case the roadway was laid out over what was "essentially a Mäori subdivision" and thus "would seem squarely within the reason for the power being given in the first place."

Accordingly, the land court had jurisdiction to make the orders that it did.

Natural justice
The plaintiffs had not been heard over the 1963 or 1968 land court proceedings and argued that there was a right to be heard where property rights are affected without compensation.

The High Court found that the 1953 Act 'might not' require observation of the principles of natural justice, given that it expressly empowered the land court to lay out roadways without consent. While it might be good practice to allow parties to be heard (and the land court in 1963 had sought consent from those it thought were the landowners) it was not clear that that practice could be elevated to a right.

If there was no right, then there had been no error in the jurisdiction of the land court and s74/1993 would apply since the error was minor only.

Even if there was some requirement to follow natural justice, the plaintiffs could have reasonably discovered the existence of the roadway on some of the titles to the land which they purchased in the area and would have been aware of its practical use. Consequently, it was difficult to see how the plaintiffs could complain now even if there had been a breach of natural justice in the 1960s.

If there had been a breach of natural justice, then s77/1993 would prevent the orders "with respect to Mäori land" being challenged more than 10 years after the date of the orders. The phrase "with respect to Mäori land" was wide enough to cover orders over European land but which had an effect on adjoining Mäori land. All that was required was that orders have some connection with Mäori land. It would make no sense if only certain orders of the land court could be challenged under s77/1993 and others could not.

Accordingly, whether or not there had been a breach of the principles of natural justice which affected the jurisdiction of the land court, the current challenge was outside the 10 year period and must be disallowed.

The High Court noted that even if s77/1993 seemed "draconian" in its effect, s44/1993 (formerly s452/1953) provides that the Chief Judge has special jurisdiction to correct errors of jurisdiction beyond the 10 year period.

The High Court also dismissed a challenge to the 1968 orders on the basis that they did not follow the 1963 court instructions. The evidence was simply too unclear to speculate about what exactly was meant when the land court ordered in 1963 that the roadway 'then in use' should be surveyed. In any event the 1968 order was the definitive order.

The High Court also dismissed an argument that the 1968 order was invalid because it had not been pronounced orally in open Court and a minute had not been entered in the court records. Even if there had been such an error of process (which was doubtful), s74/1993 would bar any such claim.

Accordingly, the land court had jurisdiction to make the disputed roadway order, any breaches or natural justice or procedure, if they existed, were procedural issues and were statute barred by s74/1993. If there were any jurisdictional errors then they could not be challenged due to s77/1993.

It was unsatisfactory that the 1963 and 1968 orders had not made any provision for maintenance of the roadway. Te Ture Whenua Mäori Act 1993 provides that roadways laid out by the land court remain within the jurisdiction of that court (s322(3)/1993). An application could be made to the land court to vary the roadway order (s322(2)/1993). Such an application would need to bear in mind that although when the roadway order was made in 1968 it provided access to Mäori land, that land had since become European or general land so that the land court would no longer have jurisdiction over the roadway and a variation was necessary.

Commentary: Te Ture Whenua Mäori Act 1993 continues to provide that the Mäori Land Court may lay out roadways over Mäori land, General land and Crown land for the purpose of providing access or additional or improved access to Mäori land and General land owned by Mäori (ss316 & 285/1993). However, in each case notice to the affected landowners is now required, and in the case of General land and Crown land, the consent of the owners is required (s317/1993).

Powell v Attorney-General and Others
M1079-AS/00. High Court, Auckland. 14 December 2000, Salmon J

In June 2000, the Court of Appeal quashed a High Court order to strike out proceedings issued by Mr Powell and gave him one month's leave to amend his statement of claim (see Mäori LR June 2000 p4 and Mäori LR Aug 1999 p4). Instead, Mr Powell filed new proceedings, in which he sought declarations under the Declaratory Judgments Act 1908 that:

o The Te Taou hapü of the Ngäti Whatua Iwi is not a subtribe of the Orakei hapü of the Orakei Marae Whänau Community and is therefore not represented by the Trust Board as in "a traditional Iwi infrastructural association".

o The Crown, by the Orakei Act 1991, had, to the exclusion of the Te Taou tribe, alienated lands over which Te Taou has Aboriginal or native title.

o With respect to Te Taou's territory known as the Auckland isthmus, the Te Taou hapü and the Ngäti Whatua ki Orakei Mäori Trust Board "share the mandate to negotiate all Treaty settlements with the Crown."

o With respect to all other parts of Te Taou's territory not mentioned in the Orakei Act 1991, the Te Taou tribal entity has a right to negotiate Treaty settlements on its own behalf and where applicable, with other "Tuku Whenua hapü Tenants" and "with other Ngäti Whatua subtribal hapü sharing those areas, if they should so choose".

The Crown applied to amend the wording of the first declaration sought and to strike out the remaining three declarations. The fourth defendant, the Ngäti Whatua ki Orakei Mäori Trust Board, applied to have all four declarations struck out.

Held: The first declaration sought should be amended to read:

"Given that Ngäti Whatua O Orakei incorporates only a portion of Te Taou, does s19(1) of the Orakei Act 1991 confer sole or any authority on the Orakei Mäori Trust Board to negotiate all outstanding Te Taou claims in the Tamaki isthmus"?

The second declaration sought should be struck out on the basis that it constituted a challenge to the Orakei Act 1991 itself and therefore did not give rise to a justiciable issue. The third and fourth declarations sought should also be struck out. Negotiations for Treaty settlements were part of a political process and there was no legal right to negotiate and accordingly, the courts cannot give a binding mandate to negotiate (Kai Tohu Tohu O Puketapu Hapü Inc v The Attorney-General and Te Atiawa Iwi Authority CP344/97 - see Mäori LR Feb 1999 p2).

Porima and Others v Waikato Raupatu Trustee Company Limited and Others: Sir Robert Mahuta and Others v Porima and Others
M327/00 & M330/00. High Court Auckland. 20 February 2001. Robertson J

By a notice dated Friday 8 December 2000, a director of the Waikato Raupatu Trustee Company gave notice of an urgent meeting of Te Kaumaarua, the company's board of directors, to be held on Tuesday 12 December 2000 at 9:00 am. The notice listed the business

to be conducted at that meeting including matters relating to the Hong Kong Savings Bank, the release of "confidential and controversial" press releases without the company's prior approval, the practice of releasing confidential company business to the press before disclosure to the Board, and "[a]ppropriate disciplinary action".

In accordance with the notice that was sent, six directors (who were the plaintiffs in proceeding M 330/00) attended the Tuesday meeting. However, the company's constitution set a quorum of seven for a director's meeting. The constitution also provided in clause 12.5.3 that:

"If a quorum is not present within 15 minutes after the time appointed for the meeting, the meeting is adjourned for three working days at the same time and place, and if, at the adjourned meeting, a quorum is not present within 15 minutes after the time appointed for the meeting, the directors who are present will constitute a quorum."

The constitution defined "working day" to exclude Saturdays, Sundays, as well as a range of public holidays. Accordingly, the directors who attended the Tuesday meeting adjourned the meeting until 9:15 on Saturday 16 December. They submitted to the High Court that where a clear period of notice must be given before a particular act may be performed, both the day on which the notice was served and the day specified by the notice as being the first day on which the act must be performed, were excluded in the computation of the time. On the other hand, the other directors (the plaintiffs in proceeding M327/00) submitted the meeting should have been adjourned to Friday 15 December. In the alternative, they submitted that the adjourned meeting should have taken place on Monday 18 December, not on Saturday 16.

Held: the three days referred to in clause 12.5.3 included all of Friday 15 December and the date for resuming the adjourned meeting was after midnight on that date. This view was reinforced by other specific references to the passage of time for notice in the company's constitution, the general approach of the law on this issue of interpretation, and the importance of providing the full measure of time, especially given that the effect of the constitution in these circumstances was to set aside temporarily the usual quorum provision for a directors' meeting.

However, the adjourned meeting should not have taken place on Saturday 16 December. Clause 12.5.3 emphasised the need for a time period measured in working days to elapse before the meeting was reconvened after the adjournment, and it followed that the new date would be a working day. The Saturday meeting was unlawful and the decisions taken at it had no validity.

Although it was not necessary to decide the matter, it also appeared "manifestly obvious" that the notice given of the meeting was inadequate for a substantial number of the resolutions passed at the Saturday meeting to be valid. For example, the removal of three directors and the appointment of three others, the termination of the Chief Financial Officer's employment, the replacement of the Secretary of the board and the termination of the services of a firm of barristers and solicitors and financial consultants had all been subsumed under the uninformative heading "appropriate disciplinary action".

His Honour commented:

"These warring groups of plaintiffs must one day understand that constantly running to the law is an ineffective way to deal with their problems. All of them have duties and responsibilities. Unless and until they come to a realisation of the need to talk with and listen to each other they will continue to be involved in destructive and draining litigation to the ultimate detriment of the people they represent."


Agreement on Moutoa Gardens (known by Whanganui iwi as Pakaitore) between Wanganui District Council, Atihaunui-a-Paparangi and the Crown
28 February 2001

This short agreement should bring to an end the dispute over this land, vested in the Wanganui District Council in 1880, and which was occupied by protestors in February 1995 (see Mäori LR May 1995 p6).

The agreement is signed by the Mayor of Wanganui on behalf of the district council, three representatives of Atihaunui-a-Paparangi and the Prime Minister on behalf of the Crown.

The three parties have agreed that the vesting of the reserve area by the Crown should be cancelled by the Minister of Conservation under s27 Reserves Act 1977, with the consent of the district council. The cancellation will be noted in the Gazette and the land will revert to the Crown, maintaining its historic reserve status.

A reserves board will then be established under s30 Reserves Act 1977, consisting of 3 district council, 3 Whanganui iwi and 1 Crown representative. This is described as a joint management arrangement. The detailed terms of reference and accountability for the joint Management Board "will need to be discussed between the three parties." The board will be obliged to manage the historic reserve under the Reserves Act, which includes granting permission to applicants to use the gardens, and maintaining the public access and use of the area.

A damaged statue of John Ballance in the gardens will be repaired and reinstated. Its location may be changed after consultation with the Ballance family and it may be removed to another part of Wanganui. A second sculpture removed during the occupation of the gardens will be replaced and will include a Mäori stone carving.

The agreement was reached by:

o Tripartite discussions since February 2000 reaching a provisional agreement

o A hui of Whanganui people approving the agreement

o A vote of the District Council at an ordinary meeting approving the agreement

o Public notification and submissions (259 comments were received)

o A second hui and extraordinary meeting approving the final form of the agreement (no amendments were made following the public consultation).

Commentary: The Wanganui District Council has incurred considerable legal expenses and the Crown has agreed to make some contribution towards these, but a figure has yet to be agreed. That matter was deliberately kept separate from the tripartite agreement (Te Puni Kokiri March 2001).

Meetings of the joint management board will presumably be governed by ss30-32 Reserves Act 1977 which provide that a chairman of the board may be appointed by the Minister of Conservation or may be elected by the board members. The chairman has the casting vote where votes are tied.

Members of the Yorta Yorta Aboriginal Community v State of Victoria and Others
[2001] FCA 45. 8 February 2001, Federal Court of Australia - Victoria. Chief Justice Black, Branson, Katz JJ

Following the High Court decision in Mabo v State of Queensland [No 2] (1992) 175 CLR 1 the Commonwealth's Native Title Act 1993 provides that Aboriginal claimants may seek a determination of native title which is defined as:

"(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)the rights and interests are recognised by the common law of Australia.

(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests."

Members of the Yorta Yorta community claimed under the Commonwealth's Native Title Act 1993 that native title existed over areas of land and waters in northern Victoria and southern New South Wales, including some 200 individual pieces of public land, many on the banks of the Murray River. The claim area also encompassed a number of towns and cities.

The Federal Court sat for 114 days and heard evidence from 201 witnesses and received a further 48 witness statements. The transcript of the hearing comprised 11,664 pages. There were initially approximately 500 non-claimant parties including the States of New South Wales, Victoria and South Australia, Aboriginal groups, various local authorities and "various sporting and recreational clubs, and persons and entities holding a wide variety of interests in the claim area including interests concerning timber and fire wood, grazing, tourism and water."

In December 1998 the trial judge, Justice Olney, determined that the impact of European settlement on the claim area had been such that any traditional connection with the land had been lost. This was irrespective of arguments that the title had been extinguished by other means. It was also not affected by efforts by members of the community in recent years to revive their connections with the claim area.

On appeal, the Federal Court upheld the decision of Justice Olney in a split decision, with Justice Branson and Justice Katz finding that the trial judge's decision should not be disturbed, while Chief Justice Black considered that the matter should be reheard because of errors in the approach of Justice Olney.

The decision of the trial judge
The key findings of Justice Olney were that:

o Indigenous people occupied the claim area in and prior to 1788 and most of the claimants could trace their descent back to two people (Edward Walker and Kitty Atkinson/Cooper) born in 1825 and the 1830s respectively.

o The "most credible source" of information about traditional laws and customs were the writings of a pastoralist (Curr) who had recorded the Aboriginal society before it had "disintegrated" and who had a "degree of rapport with the Aboriginal people with whom he came into contact". Oral testimony was "a further source of evidence, but being based upon oral tradition passed down through many generations extending over a period of 200 years, less weight should be accorded to it than to the information recorded by Curr".

o In subsequent years the society suffered such disruption that, when a missionary, Daniel Matthews, settled in the area in 1864:

"The evidence is silent concerning the continued observance in Matthews' time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. .... Furthermore, there is no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land."

o There was also positive evidence that traditional laws and customs had been abandoned, in the form of a petition of 1881 to the Governor of New South Wales signed by 42 Aboriginal people resident in the claim area. The petition noted that:

"all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary."

The petitioners sought "a sufficient area of land granted to us to cultivate and raise stock". While allowing that the missionary Matthews himself had an impact on Aboriginal customs in the area, and would have had a hand in the petition, the judge nevertheless found it compelling.

On the basis of all of the above the Justice Olney found:

"It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. …. Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival. Traditional native title having expired, the Crown's radical title expanded to a full beneficial title."

Justice Olney also considered current activities of members of the claimant group on the land as being largely confined to the protection of sites. While these sites (oven mounds, shell middens and scarred trees) were evidence of the occupation and use of the land, but they were not "of any significance to the original inhabitants other than for the utilitarian value" and no traditional law or custom required them to be preserved. Also:

o The contemporary practice of conserving food resources was not a continuation of a traditional custom.

o Contemporary fishing activities were indulged in as a recreational activity, rather than as a means of sustaining life.

o Contemporary practices of re-burial (returning remains to the appropriate "country"), had not been part of the "traditional laws and customs handed down from the original inhabitants".

o The preservation of Aboriginal heritage and conservation of the natural environment similarly had no "continuous link back to the laws and customs of the original inhabitants", even though they were worthy objectives.

Justice Olney concluded:

"The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title."

Chief Justice Black
The Chief Justice thought that the appeal raised important issues about how evidence should be approached when native title is being determined where rights and interests currently claimed are said by opponents to be "no more than a revival in a modern form of customs or rights lost long ago".

He cited passages from Mabo [No 2] which dealt with the issue of changes to custom over time. Brennan J had considered that:

"Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

He had also emphasised practicability in relation to the observance of customs:

"Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence."

It was immaterial that the laws and custom have undergone some change since the Crown acquired sovereignty "provided the general nature of the connexion between the indigenous people and the land remains."

Deane and Gaudron JJ had emphasised that "traditional law or custom is not, … frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land."

And Toohey J had stated that:

"modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life."

A key issue was what was "traditional". It was accepted by all parties that native title would no longer exist "once its foundation has disappeared by reason of the disappearance of any real acknowledgment of traditional law and real observance of traditional customs." However, "traditional" was not a concept concerned with "what is dead, frozen or otherwise incapable of change." Rather, the word is concerned with the handing on of knowledge. This notion of transmission of beliefs and customs between generations implied recognition of the possibility of change. Thus, "adapted and evolved laws and customs which, in their essence, still reflect the continuity of tradition, will fall within the concept of "traditional" for the purposes of a determination of native title."

Chief Justice Black also thought that contemporary customs which arguably had only a tenuous link with the past because of the impact of European settlement on Aboriginal people could nevertheless "provide indirect support for" and "illuminate and support" other rights founded upon what were truly "traditional" laws and customs.

The recent case of Yanner v Eaton (1999) 166 ALR 258 supported this approach. The motorised dinghy used in that case to catch crocodiles was regarded as consistent with the traditional custom of the appellant's indigenous community. If that sort of change was accepted then changes to less physical or tangible manifestations of traditional law should be accepted, such as "changed leadership structures within modern Aboriginal society."

The approach was also supported by comments in Western Australia v Ward (2000) 99 FCR 316, a case where native title was found to exist in a large area in or in the region of the East Kimberley. The appeal was mainly concerned with extinguishment, but the appeal court accepted that:

"In some areas of concentrated settler activity the reasonable inference is that Aboriginal presence became impracticable, save as people employed in the pastoral enterprises that had moved on to their lands. The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land."

It was not a requirement that a continuous "actual physical presence" was essential to a native title claim where a physical presence was no longer practicable because of settler hostility. A continuing spiritual connection with land could be proven by evidence even where land had been inundated by artificial lakes.

Chief Justice Black considered that the relevant considerations were:

o The definition of native title in s223 of the Native Title Act directs attention to the present.

o The laws presently acknowledged and the customs presently observed must be shown to be "traditional" but laws and customs that are adapted or evolved may still be "traditional".

o Native title rights and interests may continue to exist notwithstanding profound impacts upon and changes to Aboriginal society or to a particular community.

o Native title rights and interests may continue to exist notwithstanding the dispossession of traditional lands.

o Native title rights and interests may persist despite the cessation of a traditional - in the sense of pre-contact - lifestyle.

In this case the trial judge had taken the wrong approach because he had not proceeded from the present, but made findings about the past, and proceeded from that point.

It was open to the judge, applying the Mabo judgment, to reach a conclusion that, at some point in the past, there had ceased to be any real acknowledgment and observance of laws and customs based on tradition. This would relieve a court of the necessity to make findings about what are claimed to be contemporary laws and customs based on tradition. But such an approach would need to overcome 'formidable' difficulties if it was to be soundly based. The main difficulty was the fact that claims are based on oral evidence and the limitations of historical assessments "not least those made by untrained observers, writing from their own cultural viewpoint and with their own cultural preconceptions and for their own purposes." If oral history was to be treated as only confirmatory of written history, that would lead to the consistent and systematic devaluing of oral histories since, in comparison to oral history, "the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority." (quoting from Delgamuukw v British Colombia (1997) 153 DLR (4th) 193).

The problems were even greater where a culture was undergoing an adaptation which may not be understood or not appreciated at all. To avoid the pitfalls of a historical "snapshot" approach, it would be necessary to look at events over a lengthy period of time. And "[r]ecognition of the extent to which adaptation and evolution can take place without laws and customs ceasing to be "traditional" is of critical importance when any comparison is made between the situation at two widely separated points of time." The inquiry was not about a single historical event such as a ship wreck where a written record may be a good guide. It is about a much more complicated process requiring consideration of events over a long period. It would in fact be difficult to reach a conclusion that at any one point in time the foundation for every possible native title right and interest had disappeared. A finding that native title has expired must therefore be made over an extended timeframe to avoid a wrong conclusion.

There might also be only partial expiry of some native title rights and interests. "[A]lthough much may have been lost, sufficient may remain to provide a foundation for some rights and interests, such as a right to be on the land for a particular purpose."

Finally, the courts should be cautious in their conclusions because of the "irreversible consequences for indigenous people of a finding that, long ago, their ancestors ceased to acknowledge traditional laws and observe traditional customs, so that the foundation for any native title rights and interests of their ancestors vanished in those earlier times."

However, Chief Justice Black rejected the arguments of the appellants that Justice Olney had adopted a "frozen in time" approach that allowed little possibility for the evolution of traditional laws and customs. But he did agree that the low weight given to oral tradition, the reliance on the diary of the pastoralist Curr, combined with the conclusion that traditions observed by Curr were not commented on by Matthews in his writings, failed to give proper relevance to the possibility of adaptation and change in the Aboriginal culture in the face of European settlement. The petition of 1881 could not assist in addressing the issue of whether customs had continued, albeit in a changed form, while still being "traditional".

Consequently, the trial judge was in error in applying an approach that was too restrictive of the concept of "traditional". This was so even though the judge had not made continuous occupation a requirement for the continuation of native title (there was in fact plenty of evidence of the ongoing presence of the claimants and their ancestors in the claim area).

In addition, in the Ward case it was noted that a strict line of biological descent is not required between the claimants and the individuals of the community which held native title in the past. A "substantial degree of ancestral connection" was all that was necessary. The identity of the people presently entitled to enjoy native title rights is ascertained by reference to traditional laws and customs currently acknowledged and observed and "a whole range of relationships might lead to membership of the claimant community."

Nor was it fatal to native title that the relevant indigenous community ceased to pursue a traditional lifestyle, so long as the people continued to consider themselves members of a community in terms of the traditional laws and customs of that community, as adapted to accommodate the disruption to the traditional lifestyle. And the Ward decision suggested that the concept of "community" might be very broad. Consequently, the trial judge might also have been in error in concentrating on biological descent and the loss of the traditional lifestyle.

Justices Branson and Katz
Citing Mabo [No 2] and subsequent cases, these two judges concluded that common law native title can survive even though modified. However, the resulting laws and customs "must remain properly characterised as traditional. The changed laws and customs will not be traditional in character if they reflect a breaking with the past rather than the maintenance of the ways of the past in changed circumstances."

A practice with traditional roots could incorporate modern elements. "The courtroom ceremonies by which newly appointed judges publicly present their commissions as judges do not fail to be traditional within the ordinary usage of that term where women present their commissions simply because the appointment of women as judges is a relatively recent phenomenon." By analogy, a tradition of hunting may be maintained even of the animals hunted or the methods used change. However, this was not a purely subjective test, that is, whether "those who currently acknowledge a law or observe a custom regard their practice of so doing as traditional." The primary test was an objective one, whether the law or custom had "in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community."

It might also be that only the method of exercising a native title right can evolve over time, but not the right itself. In other words, a distinction might be drawn between "the evolution or modernisation of a right and a modern manner of exercising a right" (Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 per Wallace JA at 574). If only the method of exercising the right can evolve, then the rights and interests over lands and waters possessed at the date the Crown acquired sovereignty would be the maximum native title capable of being found to exist over those lands and waters, and that would be the critical matter to focus on. If the alternative view was accepted, then, at the time of the acquisition of sovereignty the radical title of the Crown was not burdened with only the native title rights and interests then existing, rather, it was "burdened by the fact of the existence of a native title - the precise nature and incidents of which were capable of changing over time."

Their Honours accepted that the latter approach was the one intended by the Native Title Act 1993. Consequently, the critical issue for the court was whether current rights and interests, however they may have changed, are possessed under acknowledged traditional laws and customs. While it might be helpful to be able to establish by evidence the precise nature of the traditional laws and customs acknowledged and observed by the indigenous people who had a connection with the relevant land or waters at the time of the acquisition of sovereignty by the Crown, it would not be fatal to a claim of native title if such evidence was not available, so long as the "traditional character of currently observed laws and customs can be established by other means."

Accordingly, Justice Olney was in error to the extent that he might have regarded the failure to provide proof of the traditional laws and customs of those who inhabited the claimed lands and waters in 1788 as fatal to the claim to native title.

However, even if he were wrong on that matter, the appeal must still fail.

Brennan J in Mabo [no 2] commented on the situation in which common law native title can expire:

"Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. …. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of the indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title that has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. … Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown."

The Native Title Act did therefore require proof that the connection to the land and waters has been substantially maintained by the appellants and their ancestors from 1788 to the present.

While case law was not definitive on the point, in terms of the burden of proof, a party asserting extinguishment on any basis carries a burden of producing evidence sufficient to raise the issue for determination, but the Aboriginal claimants carry the ultimate or legal burden of establishing that their title has not been extinguished.

While Judge Olney might be criticised for some aspects of his approach to extinguishment, his key finding was that the claimants had "ceased any real acknowledgment of its traditional laws and any real observance of its traditional customs, and had ceased to exist as a traditional indigenous community".

He was not satisfied that:

"throughout the entire period of time between 1788 and the date of the appellants' claim, the relevant indigenous community had maintained its character as an identifiable community the members of which lived under its laws and customs."

Instead, he was "positively satisfied that the relevant community had, before the end of the 19th century, abandoned its traditional way of life and its traditional culture and thus ceased to exist as a traditional indigenous community. That is, that the continuity of community acknowledgment and observance of laws and customs providing a connection with the claimed lands and waters necessary to establish native title, whether or not such laws and customs had evolved and changed over time, had not been demonstrated."

While the worth of the 1881 petition in establishing this result was "limited", it could not be said to lack any relevance on the issue of whether the community was continuing to observe, as a community, traditional laws and customs.

There was "more than adequate evidence" to support Justice Olney's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant indigenous community lost its character as a traditional community. This loss of traditional character resulted, "from physical separation from traditional lands following European settlement and from drastic reduction in numbers consequent upon disease and conflict".

The Ward decision showed that physical dispossession of the land would not of itself inevitably lead to a community ceasing to acknowledge its traditional laws and customs and connection with the land (particularly where spiritual and cultural links are retained in other ways). However, even if the trial judge had given undue emphasis to physical dispossession, he had before him other evidence from a number of witnesses that most of the traditional laws and customs of the Yorta Yorta community that existed before the mission days had been lost. For example, a key claimant witness agreed that he had never been taught about Yorta Yorta laws of descent or about any particular laws or customs that made him a Yorta Yorta person, nor had he learned the language, or been taken through any initiation ceremony for manhood, nor witnessed such a ceremony, nor been taught about Yorta Yorta ceremonies or learnt any Yorta Yorta dances.

Expert anthropological evidence was also provided that the traditional laws and customs of the Yorta Yorta/Bangerang people had "substantially vanished" and that at most there was "a shadowy and vestigial survival".

The appeal court should be cautious about interfering with the lower court finding based on hundreds of hearings days and extensive primary evidence.

Commentary: this case is significant because:

o It was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act 1993, and the appeal decision was eagerly anticipated. It will probably be the first case heard on appeal before the High Court.

o The claim was large, making the hearing lengthy and complex.

o It is the first claim for common law native title to be made over densely populated, well settled areas of land in Australia.